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Report of Investigation Regarding Allegations of Mishandling of Classified Documents by Attorney General Alberto Gonzales, Septe

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Report of Investigation Regarding Allegations of Mishandling of Classified Documents by Attorney General Alberto Gonzales, Septe U.S. Department of Justice Office of the Inspector General Report of Investigation Regarding Allegations of Mishandling of Classified Documents by Attorney General Alberto Gonzales Office of the Inspector General Oversight and Review Division September 2, 2008 TABLE OF CONTENTS I. INTRODUCTION ............................................................................... 1 II. BACKGROUND................................................................................. 2 A. Gonzales’s Professional Background........................................ 2 B. Overview of National Security Information Classification.......... 3 C. Security Facilities Available to Gonzales as Attorney General for the Handling of Classified Materials ................................... 4 1. Justice Department ....................................................... 4 2. Gonzales’s Residences.................................................... 5 D. Security Briefings Received by Gonzales as White House Counsel and as Attorney General ............................................ 7 III. GONZALES’S HANDLING OF CERTAIN CLASSIFIED DOCUMENTS... 8 A. Creation and Handling of the Handwritten Notes as White House Counsel .............................................................. 8 B. Gonzales’s Handling of the Handwritten Notes After He Was Sworn In As Attorney General ........................................ 11 C. Gonzales’s Handling of the Notes and Other SCI Documents as Attorney General............................................................... 14 1. OAG practices concerning the OAG safe....................... 14 2. Gonzales’s statements to White House attorneys and Justice Department officials about the notes................ 17 3. Storage of other TS/SCI documents ............................. 20 IV. OIG ANALYSIS................................................................................ 21 A. Gonzales Took the Classified Notes to His Residence ............. 22 B. Storing the Notes and Other TS/SCI Materials Outside of a SCIF...................................................................................... 25 C. Justice Department Security Regulations .............................. 26 V. CONCLUSION................................................................................. 28 I. INTRODUCTION This report describes the investigation by the Department of Justice Office of the Inspector General (OIG) into allegations that Alberto Gonzales mishandled classified documents while serving as the Attorney General. The matter was referred to the OIG by Kenneth Wainstein, former Assistant Attorney General for the National Security Division, on August 10, 2007. The White House Counsel’s Office had initially notified the Department of Justice (Department) about the matter, and Wainstein, after consultation with other senior Department officials, referred the matter to the OIG for investigation. The allegations initially concerned Gonzales’s handling of a document that contained classified information about a sensitive intelligence program generally referred to in this report as the NSA surveillance program. The surveillance program is administered by the National Security Agency (NSA) and is classified at the Top Secret/Sensitive Compartmented Information (TS/SCI) level. During the course of the OIG investigation, we learned of several other classified documents that Gonzales may have mishandled. Most of these documents also concerned the NSA surveillance program. Other documents concerned a detainee interrogation program also classified at the TS/SCI level. We investigated Gonzales’s handling of these documents as well. To conduct this investigation, the OIG interviewed Gonzales on three occasions. Gonzales voluntarily agreed to an initial interview and two follow-up interviews. We also interviewed attorneys in the White House Counsel’s Office, members of Gonzales’s staff within the Office of the Attorney General (OAG), and other officials in the Department knowledgeable about the handling of classified documents in general and the handling of the specific documents at issue in this investigation. We also reviewed all of the classified documents at issue in this matter. The classified materials that are the subject of this investigation consist of notes that Gonzales drafted to memorialize a classified briefing of congressional leaders about the NSA surveillance program when Gonzales was the White House Counsel; draft and final Office of Legal Counsel opinions about both the NSA surveillance program and a detainee interrogation program; correspondence from congressional leaders to the Director of Central Intelligence; and other memoranda describing legal and operational aspects of the two classified programs. This report summarizes the results of the OIG’s investigation. Section II provides background information related to this matter, including an overview of classification issues for National Security Information, a description of the facilities available to Gonzales as Attorney General for storing classified 1 1 information, and a summary of pertinent security briefings provided to Gonzales as White House Counsel and as Attorney General. In Section III of this report we discuss the facts surrounding Gonzales’s creation and handling of the classified handwritten notes that caused this matter to be referred to the OIG, as well as his handling of the other classified documents at issue in this matter. We also include a discussion of Gonzales’s familiarity with and use of the facilities available to him for the storage of classified materials. In Section IV we provide our analysis of Gonzales’s actions regarding the handling of the classified material. Section V contains our conclusions. In sum, our investigation concluded that Gonzales mishandled classified materials regarding two highly sensitive compartmented programs. We found that Gonzales took his classified handwritten notes home and stored them there for an indeterminate period of time. The notes contained operational aspects and other information about the NSA surveillance program that is classified at the TS/SCI level. By regulation, such material must be stored in a Sensitive Compartmented Storage Facility (SCIF). At the time he took these materials home, Gonzales did not have a SCIF at his house. Although Gonzales did have a safe at his residence at this time, we found that he did not use it to store the notes. We also found that Gonzales improperly stored other highly classified documents about the two compartmented programs in a safe at the Department that was not located in a SCIF. Several employees in the OAG had access to the safe where Gonzales stored the documents even though they lacked the necessary security clearances for this information. We concluded that Gonzales’s mishandling of both the notes and the other classified documents violated Department security requirements and procedures. II. BACKGROUND A. Gonzales’s Professional Background After serving as a partner in a Texas law firm, Alberto Gonzales served as General Counsel to the Governor of Texas, George Bush, from 1995 to 1997. From 1997 to 1999, he served as the Texas Secretary of State. In 1999, Governor Bush appointed Gonzales to the Texas Supreme Court. Gonzales served as White House Counsel for President Bush from January 2001 until February 3, 2005, when Gonzales was sworn in as Attorney General. Gonzales resigned as Attorney General on September 17, 2007. 2 2 B. Overview of National Security Information Classification According to Executive Order 12958, as amended, (EO 12958, as amended) National Security Information can be classified at one of the following three levels:1 “Confidential” applies to “information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.” “Secret” applies to “information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.” “Top Secret” applies to “information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.” Access to classified material may be further restricted if the material pertains to a Special Access Program, defined as “a program established for a specific class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level.” Information concerning a Special Access Program is referred to as Sensitive Compartmented Information or SCI information. Classified information may be compartmented within a classification level. Thus, TS/SCI is information classified at the Top Secret (TS) level that is subject to the enhanced controls applicable to Sensitive Compartmented Information. For instance, TS material must either be “under the personal control of an authorized or appropriately cleared person” or “guarded or stored in a locked security container,” typically a General Services Administration- approved safe. See DOJ Security Program Operation Manual at 6-202. However, SCI material must be stored in a SCIF irrespective of its classification level. According to Director of Central Intelligence Directive No. 6/9 (Nov. 18, 2002), a SCIF is a specially constructed room
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